Get ready for the greatest gay rights debate in history. That’s what to expect when the Hawaii supreme court legalizes same sex marriage in the Aloha State, probably within two years. Americans will have to grapple as never before with the notion that homosexuality deserves the same social support and recognition as heterosexuality.
Yet even as we approach this day of reckoning, an increasing number of lesbian and gay activists are engaging in a dangerous form brinkmanship that threatens to scuttle the whole process. They are applying for marriage licenses in their localities, and then filing law suits when their applications are denied. These cases are popping up so fast that there’s even talk of forming an Act-Up-style marriage group whose main goal would be to apply for marriage licenses in every jurisdiction in the nation, then go to court whenever they are denied.
The strategy seems well intended. Those who pursue it genuinely want the freedom to marry, and argue that they’re just trying to do their bit for the cause. But legal experts at Lambda Legal Defense and Education Fund and other organizations vigorously disagree, and they’re increasingly spending much of their time flying around the country begging local activists to desist. That, in turn, has some local activists leveling angry charges that such gay leaders are control freaks who want to stop all grassroots initiatives and hog the marriage spotlight for themselves — or even that such leaders are secretly against marriage rights, and want to sabotage the process. It’s getting nasty.
So before we end up tearing ourselves apart over strategy (what else is new?), it’s worthwhile to try to understand why legal experts are so opposed to opening up new marriage battles in local courts. As most people know, the marriage case in Hawaii is almost certain to result in victory. When it does, lesbian and gay couples will fly to Hawaii, marry, then fly home and claim marriage rights in their own jurisdictions. Since this will compel every state in the union to address same sex marriage head on, we don’t exactly need any more cases right now. We’re already winning in the one court that counts.
But the real problem is that other cases have the potential to derail the Hawaii strategy. And surprisingly, this remains true no matter how they turn out. If gay litigants in other states sue and lose, they unwittingly create damaging legal precedents that can then be used against us in Hawaii, possibly even snatching defeat from the jaws of almost certain legal victory. And things look just as bad if litigants win. The reason is that the gay movement is not yet ready to force the right wing’s hand over the issue of gay marriage. Since the Hawaii decision is at least two years away, that gives us two precious years in which to cram in about twenty years of organizing, educating, lobbying and coalition building to try to ensure that Hawaii doesn’t turn into another gays in the military-style national crisis. But if somebody sues and wins now, that lead time evaporates. Instead of two years to make our case, we’ll have no time at all.
So these cases create lose-lose situations no matter how they turn out. What’s more, they tend to distract us from the genuine work on marriage that desperately needs to get done. We need to put together local marriage organizations in every city and town in the nation. This is work that anyone can do, and the National Gay and Lesbian Task Force [After October 2014, known as the National LGBTQ Task Force.] in Washington has produced an organizing manual [To Have, to Hold] to help us do it.
We need to lobby local churches and unions and other organizations to endorse the Marriage Resolution*, which is a brief statement in support of same-sex marriage. Lambda is keeping a national list of the groups that have endorsed the resolution, which will come in handy when the Hawaii decision comes down. We need to collect local spokespeople to make the case for marriage, an effort being organized by the Gay and Lesbian Alliance Against Defamation. We need to write letters to newspapers, lobby politicians and community leaders. We even need to hold demonstrations and engage in civil disobedience to draw attention to the inequities of marriage law — everything that can be done to raise consciousness short of precipitating a legal crisis. That will come soon enough.
Long story short, there’s tons to do. And to be fair, people are increasingly starting to do it - but nowhere near enough. Part of the reason is complacency. But part is this rather insidious idea that the best way to fight for marriage is through the courts. Some even argue that since the purpose of organizing is to get the public’s attention, filing a law suit is the best form of organizing, since it virtually guarantees press coverage. Well, it’s an easy way to get public attention. But it’s an incredibly dangerous way, with risks that far outweigh the potential benefits.
Ultimately, same-sex marriage will not be won in the law courts, no matter how the Hawaii case or any other case turns out. It will be won, or lost, in the court of public opinion, when we convince the majority in this society that same-sex marriage is morally right. If we really want the freedom to marry, we’ll have to win it the same way every minority has won whatever rights they have: We’ll have to change the hearts and minds of the majority. And the best way to do that — the only way, really — is to get out of the courtrooms and into the streets.
* The Marriage Resolution is no longer being maintained. It stated:
“Because marriage is a basic human right and an individual personal choice,
Resolved — the State should not interfere with same-gender couples who choose to marry
and share fully and equally in the rights, responsibilities, and commitment of civil marriage.”
Article © 1995, Gabriel Rotello — Reprinted by permission.
It first appeared in the Advocate #696, Dec. 12, 1995
Mr. Rotello may be contacted at Gabo3@aol.com